Should prosecutors be criminally liable for intentional misconduct?

Ed Lavendera at CNN tells the story of James Woodard, who was wrongfully convicted in Dallas, Texas, and served 27 years in prison before DNA cleared him of the crime.
Woodard was convicted of raping and murdering his girlfriend in 1981 and sentenced to life in prison. At his trial, the jury believed that he was the last person seen with the victim. The prosecutors knew that two other men had been seen with her, but they never followed up on the lead and they never told the defense attorneys. After losing 27 years of his life, Woodard is finally freed after DNA evidence was tested, exonerating him.
Prosecutors enjoy absolute immunity from 1983 liability for their actions during the course of a prosecution, and they are rarely prosecuted. Dallas County District Attorney Craig Watkins says that unethical prosecutors who commit Brady violations should be criminally liable:

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Although it will never happen, I believe a prosecutor should be held criminally liable for intentional conduct such as a Brady violation that could result in an innocent person going to prison. I also believe that the rule of absolute immunity as applied to intentional conduct should be reconsidered. In Imbler v. Pachtman, the U.S. Supreme Court held that the prosecutor was not civilly liable under Section 1983 for violating a defendant’s constitutional rights during a prosecution. In Pachtman, the prosecutor knowingly used false testimony and suppressed evidence to obtain a conviction and a sentence of death.
Craig Watkins is suggesting criminal liability for intentional Brady violations, and I agree, but there are other crimes that are being committed by these prosecutors as well. The prosecutor in Pachtman committed subornation of perjury and attempted murder with impunity.
The argument against liability for even intentional acts is that it would have a chilling effect on prosecutions. Attorneys wouldn’t even want to work as prosecutors, for fear of liability. I don’t believe that for a minute. That is like saying making rape a crime will have a chilling effect on sex. People won’t want to have sex anymore. It is only intentional bad conduct that we are talking about here.

One Response to “Should prosecutors be criminally liable for intentional misconduct?

  • There is precedent for liability for prosecutors – in the imperial Chinese legal system, at least from the Tang dynasty onward, a judge found responsible for a wrongful conviction was liable to receive the same sentence as the defendant. I’m not aware of any evidence that this inhibited the prosecution of crime in China.

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